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2007 Federal Sentencing Guidelines

CHAPTER FOUR - PART A - CRIMINAL HISTORY

§4A1.1. Criminal History Category

The total points from items (a) through (f) determine the criminal
history category in the Sentencing Table in Chapter Five, Part A.

(a) Add 3 points for each prior sentence of imprisonment exceeding
one year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at
least sixty days not counted in (a).

(c) Add 1 point for each prior sentence not counted in (a) or (b),
up to a total of 4 points for this item.

(d) Add 2 points if the defendant committed the instant offense
while under any criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape
status.

(e) Add 2 points if the defendant committed the instant offense
less than two years after release from imprisonment on a sentence
counted under (a) or (b) or while in imprisonment or escape status
on such a sentence. If 2 points are added for item (d), add only 1 point for this item.

(f) Add 1 point for each prior sentence resulting from a conviction
of a crime of violence that did not receive any points under (a),
(b), or (c) above because such sentence was counted as a single
sentence, up to a total of 3 points for this item.

Commentary

The total criminal history points from §4A1.1 determine the
criminal history category (I-VI) in the Sentencing Table in Chapter
Five, Part A. The definitions and instructions in §4A1.2 govern
the computation of the criminal history points. Therefore, §§4A1.1
and 4A1.2 must be read together. The following notes highlight the
interaction of §§4A1.1 and 4A1.2.

Application Notes:

1. §4A1.1(a). Three points are added for each prior sentence of
imprisonment exceeding one year and one month. There is no limit
to the number of points that may be counted under this item. The
term "prior sentence" is defined at §4A1.2(a). The term "sentence
of imprisonment" is defined at §4A1.2(b). Where a prior sentence
of imprisonment resulted from a revocation of probation, parole, or
a similar form of release, see §4A1.2(k).

Certain prior sentences are not counted or are counted only under
certain conditions:

A sentence imposed more than fifteen years prior to the defendant’s
commencement of the instant offense is not counted unless the
defendant’s incarceration extended into this fifteen-year period. See §4A1.2(e).

A sentence imposed for an offense committed prior to the
defendant’s eighteenth birthday is counted under this item only if
it resulted from an adult conviction. See §4A1.2(d).

A sentence for a foreign conviction, a conviction that has been
expunged, or an invalid conviction is not counted. See §4A1.2(h)
and (j) and the Commentary to §4A1.2.

2. §4A1.1(b). Two points are added for each prior sentence of
imprisonment of at least sixty days not counted in §4A1.1(a).
There is no limit to the number of points that may be counted under
this item. The term "prior sentence" is defined at §4A1.2(a). The
term "sentence of imprisonment" is defined at §4A1.2(b). Where a
prior sentence of imprisonment resulted from a revocation of
probation, parole, or a similar form of release, see §4A1.2(k).

Certain prior sentences are not counted or are counted only under
certain conditions:

A sentence imposed more than ten years prior to the defendant’s
commencement of the instant offense is not counted. See §4A1.2(e).

An adult or juvenile sentence imposed for an offense committed
prior to the defendant’s eighteenth birthday is counted only if
confinement resulting from such sentence extended into the five-year period preceding the defendant’s commencement of the instant
offense. See §4A1.2(d).

Sentences for certain specified non-felony offenses are never
counted. See §4A1.2(c)(2).

A sentence for a foreign conviction or a tribal court conviction,
an expunged conviction, or an invalid conviction is not counted. See §4A1.2(h), (i), (j), and the Commentary to §4A1.2.

A military sentence is counted only if imposed by a general or
special court martial. See §4A1.2(g).

3. §4A1.1(c). One point is added for each prior sentence not
counted under §4A1.1(a) or (b). A maximum of four points may be
counted under this item. The term "prior sentence" is defined at
§4A1.2(a).

Certain prior sentences are not counted or are counted only under
certain conditions:

A sentence imposed more than ten years prior to the defendant’s
commencement of the instant offense is not counted. See §4A1.2(e).

An adult or juvenile sentence imposed for an offense committed
prior to the defendant’s eighteenth birthday is counted only if
imposed within five years of the defendant’s commencement of the
current offense. See §4A1.2(d).

Sentences for certain specified non-felony offenses are counted
only if they meet certain requirements. See §4A1.2(c)(1).

Sentences for certain specified non-felony offenses are never
counted. See §4A1.2(c)(2).

A diversionary disposition is counted only where there is a finding
or admission of guilt in a judicial proceeding. See §4A1.2(f).

A sentence for a foreign conviction, a tribal court conviction, an
expunged conviction, or an invalid conviction, is not counted. See §4A1.2(h), (i), (j), and the Commentary to §4A1.2.

A military sentence is counted only if imposed by a general or
special court martial. See §4A1.2(g).

4. §4A1.1(d). Two points are added if the defendant committed any
part of the instant offense (i.e., any relevant conduct) while
under any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.
Failure to report for service of a sentence of imprisonment is to
be treated as an escape from such sentence. See §4A1.2(n). For
the purposes of this item, a "criminal justice sentence" means a
sentence countable under §4A1.2 (Definitions and Instructions for
Computing Criminal History) having a custodial or supervisory
component, although active supervision is not required for this
item to apply. For example, a term of unsupervised probation would
be included; but a sentence to pay a fine, by itself, would not be
included. A defendant who commits the instant offense while a
violation warrant from a prior sentence is outstanding (e.g., a
probation, parole, or supervised release violation warrant) shall
be deemed to be under a criminal justice sentence for the purposes
of this provision if that sentence is otherwise countable, even if
that sentence would have expired absent such warrant. See §4A1.2(m).

5. §4A1.1(e). Two points are added if the defendant committed any
part of the instant offense (i.e., any relevant conduct) less than
two years following release from confinement on a sentence counted
under §4A1.1(a) or (b). This also applies if the defendant
committed the instant offense while in imprisonment or escape
status on such a sentence. Failure to report for service of a
sentence of imprisonment is to be treated as an escape from such
sentence. See §4A1.2(n). However, if two points are added under
§4A1.1(d), only one point is added under §4A1.1(e).

6. §4A1.1(f). In a case in which the defendant received two or
more prior sentences as a result of convictions for crimes of
violence that are counted as a single sentence (see §4A1.2(a)(2)),
one point is added under §4A1.1(f) for each such sentence that did
not result in any additional points under §4A1.1(a), (b), or (c).
A total of up to 3 points may be added under §4A1.1(f). For
purposes of this guideline, "crime of violence" has the meaning
given that term in §4B1.2(a). See §4A1.2(p).

For example, a defendant’s criminal history includes two robbery
convictions for offenses committed on different occasions. The
sentences for these offenses were imposed on the same day and are
counted as a single prior sentence. See §4A1.2(a)(2). If the
defendant received a five-year sentence of imprisonment for one
robbery and a four-year sentence of imprisonment for the other
robbery (consecutively or concurrently), a total of 3 points is
added under §4A1.1(a). An additional point is added under
§4A1.1(f) because the second sentence did not result in any
additional point(s) (under §4A1.1(a), (b), or (c)). In contrast,
if the defendant received a one-year sentence of imprisonment for
one robbery and a nine-month consecutive sentence of imprisonment
for the other robbery, a total of 3 points also is added under
§4A1.1(a) (a one-year sentence of imprisonment and a consecutive
nine-month sentence of imprisonment are treated as a combined one-year-nine-month sentence of imprisonment). But no additional point
is added under §4A1.1(f) because the sentence for the second
robbery already resulted in an additional point under §4A1.1(a).
Without the second sentence, the defendant would only have received
two points under §4A1.1(b) for the one-year sentence of
imprisonment.

Background: Prior convictions may represent convictions in the
federal system, fifty state systems, the District of Columbia,
territories, and foreign, tribal, and military courts. There are
jurisdictional variations in offense definitions, sentencing
structures, and manner of sentence pronouncement. To minimize
problems with imperfect measures of past crime seriousness,
criminal history categories are based on the maximum term imposed
in previous sentences rather than on other measures, such as
whether the conviction was designated a felony or misdemeanor. In
recognition of the imperfection of this measure however, §4A1.3
authorizes the court to depart from the otherwise applicable
criminal history category in certain circumstances.

Subdivisions (a), (b), and (c) of §4A1.1 distinguish confinement
sentences longer than one year and one month, shorter confinement
sentences of at least sixty days, and all other sentences, such as
confinement sentences of less than sixty days, probation, fines,
and residency in a halfway house.

Section 4A1.1(d) implements one measure of recency by adding two
points if the defendant was under a criminal justice sentence
during any part of the instant offense.

Section 4A1.1(e) implements another measure of recency by adding
two points if the defendant committed any part of the instant
offense less than two years immediately following his release from
confinement on a sentence counted under §4A1.1(a) or (b). Because
of the potential overlap of (d) and (e), their combined impact is
limited to three points. However, a defendant who falls within
both (d) and (e) is more likely to commit additional crimes; thus,
(d) and (e) are not completely combined.